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Federal judge finds no constitutional violation in cell site simulator lawsuit

A federal judge sided with Baltimore police Wednesday in a civil lawsuit over the constitutionality of using a cell site simulator, finding an order obtained by police met the warrant requirement.

U.S. District Judge Catherine C. Blake reached the opposite conclusion of the Court of Special Appeals, which ruled police violated Kerron Andrews’ Fourth Amendment right when they used the device, known as “Hailstorm,” to track and arrest him in 2014.

Blake said she was not bound by the state appellate court decision and found the order obtained by police contained a probable cause finding and authorized the use of a pen register/trap and trace order as well as a real-time tracking tool.

A cell site simulator, which works by mimicking a cell tower and looking for a particular cellphone based on a serial number, gets a phone to transmit its location without the owner’s knowledge. Police found Andrews inside a private residence with the phone in his pocket.

H. Mark Stichel, a lawyer for Andrews, said he is disappointed with Blake’s ruling and will be looking at the decision to determine issues for a potential appeal.

“It’s my position that the police can’t put little words in there and then somehow surreptitiously turn this pen register order into a warrant,” said Stichel, of Astrachan Gunst Thomas PC in Baltimore.

Blake relied in part on a 2013 federal ruling that a pen register order substantially similar to the one in Andrews’ case constituted a warrant allowing police to “ping” the defendant’s cellphone as well as a 2017 Court of Appeals opinion that detectives relied in good faith on what they believed was a valid warrant when they obtained a similar order.

Baltimore City Solicitor Andre M. Davis said Blake “lasered in on the precise issue and her reasoning and application of legal principles were unassailable.”

Candid representations

When a cell site simulator was being used, police often made oblique references in arrest reports and other discovery materials, according to the Court of Special Appeals ruling in Andrews’ case. It was later discovered that the Baltimore Police Department was required to sign a non-disclosure agreement in order to use the technology.

“At every turn, the Baltimore Police Department is being very opaque by presenting this pen register order to a judge but then claiming it’s a warrant,” Stichel said. “This all compounds and is directly counter to what the Fourth Amendment is all about.”

Blake wrote her determination Andrews’ rights were not violated “should not be mistaken for (the court’s) approval of the government’s conduct.” Signing a non-disclosure agreement and editing a pen register order to function as a search warrant objectively meets constitutional standards, she wrote, but “a more candid approach to the court would have been preferable.”

“Warrants are required to safeguard individual privacy in the face of new, potentially intrusive, technology,” she said. “If law enforcement wishes to use new technology to combat crime, it may — indeed, it should — do so. But it should be candid about the types of searches it actually plans to conduct.”

Davis said the judge’s words did not go unnoticed by the city.

“I especially take to heart her admonition that the Baltimore City Police should be (and will be as long as I am the lawyer for the Police Department) candid and transparent to the courts in combating crime, including its investigative methods,” he said.

The case is Kerron Andrews v. Baltimore Police Department et al., 1:16cv02010.

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